Malta Immigration Detention

Malta is the most densely populated country in the European Union and has one of the highest concentrations of refugees in the world. Although at one time it served as a key destination for migrants and asylum seekers crossing the Mediterranean Sea en route to Europe, increased efforts to interdict boats have led to a sharp decline in irregular arrivals. In 2015 the country revised several key policies, including ending mandatory detention and adopting new detention measures at initial reception sites.

Malta Immigration Detention Profile

The Republic of Malta, an archipelago located in the southern Mediterranean, is the most densely populated country in the European Union (EU). It also has one of highest concentrations of refugees in the world.[1] When Malta joined the EU in 2004 it became its southernmost border and an important entry point for migrants and asylum seekers attempting to reach Europe. Until recently, the country received more than 2,000 irregular boat arrivals annually.[2] This situation led officials to characterize unauthorized migration to the country as an “emergency” and a “national crisis.”[3]

However, the situation in Malta has changed dramatically in recent years as boat arrivals have plummeted and the country has revised its immigration laws and policies. Only 104 people arrived by boat in 2015 and 25 in 2016.[4] Some reports contend that these declining numbers are the result of a secret agreement between Malta and Italy. The details of this agreement remain unclear, but statements by officials have indicated that the country agreed to give up oil exploration rights in exchange for Italian assistance interdicting boats. For its part, the European Commission has said that it “is not aware of any bilateral agreement between the Maltese and Italian authorities concerning Search and Rescue (SAR) operations in the Mediterranean Sea.”[5]

In 2015, Malta revised its legal and policy framework regarding the reception of asylum seekers. One critical change was ending the policy of mandatory detention, which had made Malta unique among EU countries. Currently, most foreigners arrive to Malta by plane, including both regular and irregular travellers. Irregular arrivals are supposed to be transferred to an “Initial Reception Centre,” where immigration officers are to assess on a case-by-case basis whether there are grounds for longer term detention.[6] However, civil society groups like Jesuit Refugee Services and Aditus claim that in practice people arriving irregularly often do not pass through the Initial Reception Center but are taken directly to detention.[7]

When Malta took over the presidency of the European Council in January 2017 it listed migration as a key priority. Its agenda has included strengthening the common European Asylum system by revising the Dublin regulations and improving implementation of the relocation system.[8] Malta has also emphasized the EU objective of completing the work of “the European External Investment Plan to promote sustainable investment in Africa and the Neighbourhood and to tackle the root causes of migration.”[9] Another critical focus has been the “wide-ranging cooperation” on Libya,[10] as spelled out in the 2017 “Malta Declaration” of the European Council “addressing the Central Mediterranean route.”[11] Cooperation with Libya has included training and equipping the Libyan coast guard to enhance border management capacity and curtail migration to the EU.[12] These efforts have been the subject of intense scrutiny because of the numerous reports of severe human rights abuses migrants and asylum seekers face in Libya, including in detention centres.[13]

LAWS, POLICIES, PRACTICES

Key norms. The 1970 Immigration Act (Immigration Act, Chapter 217 of the Laws of Malta), which has been amended several times, is the main instrument regulating border control, detention, expulsion, and residence.[14] A relevant subsidiary piece of legislation is the 2011 Common Standards and Procedures for Returning Illegally Staying Third-Country Nationals Regulations[15] (Return Regulations, Legal Notice 81), which transposed the EU Returns Directive into Maltese law. The treatment of asylum seekers is regulated by the 2001 Refugees Act.[16]

For years Malta was the only EU member in which persons entering the country irregularly were subject to automatic and mandatory pre-removal detention. However, this policy came to end in 2015 when the Maltese government revised its legal and policy framework, amending the Immigration Act (Act No. XXXVI of 2015) and regulations on the reception of asylum seekers (Legal notice 417). The country issued a new policy document entitled “Strategy for the Reception of Asylum Seekers and Irregular Migrants.” In addition to ending automatic detention, the policy changes included alternatives to detention and specific legal grounds for detention. The new migration strategy also included the establishment of a new accommodation facility, called “Initial Reception Facility,” where all irregular arrivals are to be held for medical screening and processing. The facility operates as a secure detention facility but stays are supposed to be limited to seven days unless there are health-related reasons that require extending the stay.

Observers welcomed the 2015 legal amendments. A human rights lawyer speaking on behalf of a coalition of civil society organisations,[17] commented, “It is positive to see Malta finally moving from a system of automatic detention to one based on individual assessments of each case.”[18] UNHCR said that “the revised legislative and policy framework introduces a number of important changes which, once implemented in practice, will lead to improved reception standards and treatment for many asylum applicants who arrive in Malta in an irregular manner.”[19]

Nevertheless, some of the new measures have been the subject of criticism, including: detention at the initial reception centre because it could be based on discriminatory assumptions concerning the risk of contracting and transmitting infectious diseases; poorly defined alternatives to detention (see the section on “alternatives to detention” below); and lack of clarity on asylum procedures for people arriving by plane.[20] UNHCR also expressed concern that some elements in the migration policy are not fully in line with international human rights standards and could lead to arbitrary or unlawful detention.[21]

Grounds for Detention. “Prohibited migrants” are issued a removal order that can include detention measures to ensure removal (Immigration Act 14(2)). The Immigration Act describes two categories of “prohibited immigrants”: (1) persons who enter or are present in Malta without authorization (article 5(1)); and (2) persons whose authorization to enter or stay in the country is invalidated because they are unable to support themselves and their dependents; suffer from mental disorder; are found guilty of certain crimes; contravene the provisions of the Immigration Act or the regulation made thereunder; cease to comply with the conditions under which they were granted leave to land or to remain in Malta or when the circumstances which determined the granting of such leave cease to exist; are prostitutes; or are dependents of a “prohibited immigrant” (article 5(2)).

Prior to the 2015 amendments to the Immigration Act, article 14(1) stated that an immigration officer could issue a “removal decision,” which automatically triggered detention. The new law replaces this language with “return decision.” A return decision is not necessarily accompanied by a removal order. According to UNHCR, this substitution means that immigration authorities may now issue return decisions instead of removal orders, which should stop the automatic issuing of removal orders. The Immigration Act provides discretion to immigration officials on whether to issue a return decision. Also, the legislation states that any person who belongs to the first category of “prohibited immigrants” or is reasonably suspected of it “may be taken into custody without warrant by the Principal Immigration Officer or by any Police officer and while he is so kept in custody he shall be deemed to be in legal custody” (Immigration Act, article 16). In addition, the Minister for Justice and Home Affairs may issue a deportation order to “any person” (Art. 22, para.1) under conditions deemed “proper” by the Minister (para. 2). Such persons are required to leave Malta (para. 4) and “may be detained in such manner as may be directed by the Minister until he leaves Malta” (para. 5).

Under article 10 of the Immigration Act persons refused entry may be placed temporarily on land or shore and detained until their departure. These people are considered not to have formally entered the country. As spelled out in article 10(3) of the Immigration Act, such detainees “shall be deemed to be in legal custody and not to have landed.”

In 2011, Malta adopted the Return Regulations, transposing the EU Returns Directive. This resulted in limed reforms to Malta’s legal provisions related to detention. In particular, while the Returns Directive provides some basic safeguards against mandatory detention, these safeguards only apply to a small number of non-nationals in Malta because the country took advantage of the option offered in the Directive to limit the scope of some of its provisions. The Return Regulations excludes from its scope persons refused entry or those who are apprehended “in connection with the irregular border crossing” and who have not subsequently obtained an authorization to stay in the country (Return Regulations, Regulation 11(1)). Because the majority of immigration detainees in Malta are people who have entered the country without authorization or have been refused entry, the Directive’s provisions are not applied in most detention cases.

For those non-nationals to whom it applies—i.e. the second category of “prohibited immigrants” discussed above—the Return Regulations provides that there must be specific grounds to justify detention: (1) if the person displays a risk of absconding; or (2) avoids or hampers the return or removal procedure (Regulation 11(6)).

The December 2015 amendment to the Immigration Act introduced three new provisions to article 14(4). Of particular relevance is the provision stating that “whenever a prohibited immigrant has filed an application for asylum, the Principal Immigration Officer shall not be required to issue a return decision or removal order.” The introduction of this provision ended the practice of systematic and automatic detention of all persons arriving in an irregular manner.

Asylum seekers. Before the Ministry of Home Affairs and National Security adopted the 2015 “Strategy for the Reception of Asylum Seekers and Irregular Migrants,”[22] asylum seekers were detained on the same grounds as other categories of non-citizens, with the only difference being that asylum seekers faced a maximum detention period of 12 months. Legal notice 417 of 2015 provided a new regulation for reception regulations, which establishes for following grounds for the detention of asylum seekers: a) to determine or verify identity or nationality; b) to determine those elements on which the application is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding on part of the applicant; c) to decide on the applicant’s right to enter Maltese territory; d) when the applicant is subject to a return procedure and there are reasonable grounds to believe that the application for international protection was made merely to delay or frustrate a enforcement of a return decision; e) to protect national security or public order; f) to determine the member state responsible for the examining of the application.

Further, the Amendment Act 2015 introduced three new provisions under article 14(4) of the immigration Act. It states that if a person considered a prohibited immigrant under article 5 applies for international protection then the effect of the removal order shall be suspended until final determination of the asylum application. When a prohibited immigrant files an asylum application the Principle Immigration Officer shall not be required to issue a return decision or a removal order.

As various civil society actors note, the migration strategy presented in December 2015 mainly focuses on the procedures relating to asylum seekers arriving in Malta in an irregular manner, usually by boat. The policy paper fails to clearly state how it is to be applied in the case of asylum seekers who arrive in a regular manner, usually by plane, and only subsequently seek asylum.[23] UNHCR’s 2016 asylum trends[24] appears to shows that the majority of applications for international protection are filed by people arriving to Malta in a regular manner; in 2016, 1,733 asylum applications were filed (652 by Libyans) while only 25 people arrived by boat (irregularly) during the same year.

Length of detention. As stipulated in the Return Regulations, detention is generally not to exceed six months (Return Regulations, Regulation 11(12)). Reflecting the Returns Directive, the legislation allows for extending the period of detention up to 18 months because of (1) lack of cooperation by the detainee or (2) delays in obtaining the necessary documents from the third country (Return Regulations, Regulation 11(13)).

Malta did not transpose the Directive’s due diligence standard regarding extension of detention, notably that the 18-month detention is permissible only if the removal operation lasts longer than the initial six-month period despite authorities taking all reasonable efforts to secure the removal. In the Massoud case, the European Court of Human Rights (European Court or ECtHR) found that Malta violated the applicant’s right to liberty because the country did not prove that the deportation proceedings were pursued vigorously pending the applicant’s extended detention.[26]

Provisions limiting the permissible length of detention do not apply to persons excluded from the scope of the Return Regulations. Importantly, the Immigration Act also does not specify a maximum length for these persons; rather, time limits are determined by a government policy document, the Ministry’s for Justice and Home Affairs 2005 Policy Document: Irregular Immigrants, Refugees and Integration. This policy provides that no one is to be kept in detention for longer than 18 months. However, because this maximum period is not stipulated in law, the UN Working Group on Arbitrary Detention (WGAD) has expressed concern over the possibility of people being detained for longer than 18 months.[27]

The maximum length of detention for asylum seekers was introduced in law in 2015 as regulation (6(7)) of the revised reception regulations. It establishes that any person detained in accordance with reception regulations shall, after nine months, be released from detention if he is still an applicant. As UNHCR notes,[28] despite the shortening of the maximum detention period, it appears that the practice of using the time limit established by EU reception conditions Directive for access to the labour market to regulate detention practices seems to have been retained. This regulation is not in line with Article 9(1) of the EU Reception Conditions Directive, which instead states that an asylum seeker is to be detained for as short a period as possible and only in so long as the grounds for detention (set out in art 8(3)) remain applicable.

The WGAD, in the report on its July 2015 visit to Malta, stated that the overall average detention period had decreased to three months. However, non-citizens whose applications for international protection were rejected continued to be detained for periods of time up to 18 months.[29] According to the AIDA report, at the end of 2016 asylum seekers were detained for an average of two months.[30]

Procedural guarantees. According to article 14(2) of the Immigration Act detention may result from the issuing of a return decision with a removal order. The law provides for the possibility to appeal a removal order but not a detention measure that is tied to a removal order. Under article 25(A), immigration detainees may appeal a removal order to the Immigration Appeals Board within three working days following the issuance of the order. If the removal order is revoked the person concerned is automatically released.[31] Detainees may also apply to the Board to be released pending asylum or deportation procedures. Persons released are still obligated to report to the authorities at least once a week. The Board may refuse to grant a release in cases where the person concerned does not cooperate with the authorities regarding his or her removal. Moreover, the release is refused where the identity of the appellant, including nationality, has not yet been verified, the elements of asylum application have not yet been determined, or for public security reasons (Art. 25A (9-13)). This restriction, combined with long delays in examining appeals and rare cases where this remedy is successful, led the European Court to conclude that this remedy falls short of judicial review of detention under article 5(4) of the ECHR.

Regarding detention review, the “Common Standards and Procedures for Returning Illegally Staying Third Country Nationals Regulations” state that a detained non-citizen awaiting removal shall have his detention reviewed either by application or ex officio by the Principal Immigration Officer at reasonable intervals of time which should not exceed three months (Art. 11 (8)). If the Board finds that the detention is not lawful the person concerned is to be released immediately (Return Regulations, Regulation 11(10)-(12)). However, the Returns Regulations apply to a very restricted categories of non-citizens and most immigration detainees are excluded from their scope (see Grounds for Detention section for more details on this).

Regulation 6(2) of the “Reception of Asylum Seekers Regulations” stipulates that the principal immigration officer has to issue a detention order stating the reasons upon which the decision on the detention of an applicant for international protection has been taken, in a language that the applicant is reasonably supposed to understand. The Immigration Appeals Board has to review the lawfulness of detention after seven days. If the applicant is still detained after two months of detention another review is to be carried out (Regulation 6(4)). Whenever the Immigration Appeal Board rules that detention is unlawful the applicant is to be immediately released. As well as this automatic review of detention, the new reception regulations state that whenever the an immigration officer issues such a detention order he shall also inform the applicant of the procedures through which detention can be challenged and free legal assistance obtained.

Despite these changes, both the WGAD[32] and UNHCR[33] have stated that public defence lawyers face hurdles bringing procedures before domestic courts or the European regional justice mechanisms. Further, no provisions are provided that specify that the Appeals Board is to periodically assess the necessity and proportionality of the continuation of detention in each individual case. UNHCR reported that interpretation services are often lacking thus making lawyer client meetings complicated and that some lawyers in the legal aid pool were not knowledgeable on matters referring to refugee law.

Despite these limitations in challenging detention, there exist various possible remedies, though their efficacy appears to be severely limited.[34] The European Court has argued that most of the remedies fail to satisfy the requirement of judicial review under article 5(4) of the European Convention on Human Rights (ECHR).[35]

Another remedy is set out in article 409A of the Criminal Code, by virtue of which immigration detainees can make a request to the Court of Magistrates to examine the lawfulness of detention and order release from custody. The court solely assesses whether detention is founded on any provision of Maltese law. In particular, it is not competent to look into other circumstances which could render detention illegal, such as incompatibility with the ECHR. When this remedy has been pursued, the Court of Magistrates has found that as the Immigration Act authorized pre-removal detention, such detention was lawful.[36] Due to the limited scope of this scrutiny, the European Court found that this remedy cannot be considered an effective remedy as required under the ECHR.[37]

Immigration detainees can also seek a constitutional remedy. They may challenge the length of detention, relying on article 34 of the Constitution of Malta, which protects people from arbitrary arrest or detention, or article 5 of the ECHR before the Civil Court. However the European Court found that constitutional proceedings were cumbersome and could not satisfy the requirement of speedy review of the lawfulness of detention under article 5(4) of the ECHR.[38]

Malta’s weak procedural guarantees have repeatedly attracted criticism from the UN and regional human rights bodies. The WGAD in 2016 observed that effective and speedy remedies for detainees to challenge the necessity and legality of detention were still lacking.[39] In October 2013, the European Commission against Racism and Intolerance (ECRI) recommended that Malta amend its legislation to ensure that all immigration detainees be provided with speedy and effective judicial remedy to challenge the lawfulness of their detention (ECRI 2013).[40] In early 2013, the UN Committee on the Rights of the Child (CRC) expressed concern over the lack of systematic and regular judicial review of detention and the fact that existing procedures are frequently inaccessible and ineffective. It urged Malta to adopt legislation, policies and practices that subject immigration detention to periodic reviews.[41]

Previously, in 2011, the UN Committee on the Elimination of Racial Discrimination (CERD) called on Malta to effectively guarantee the legal safeguards for all immigrants detained, in particular to inform them about their rights, including the legal assistance and to provide assistance to those who seek asylum.[42] Also, in 2009, the WGAD urged Malta to set up an automatic periodic review procedure by a court of law on the necessity and legality of detention; to provide for an effective remedy to challenge the necessity and legality of detention at any time throughout detention; and to establish a system of legal aid for immigration detainees (WGAD 2010).[43]

Children and other vulnerable persons. Although the Return Regulations do not explicitly state that vulnerable people can be detained, they state that when they are detained they are to be provided with emergency health care and essential treatment of illness (Return Regulations, Regulation 9(3)). There are also several provisions addressing children. They shall only be detained as a measure of last resort and for the shortest period possible. Families shall be provided with separate accommodation guaranteeing adequate privacy. Minors shall have access to leisure activities, including play and recreational activities appropriate to their age and education, depending on the length of their stay. Unaccompanied minors as far as possible shall be accommodated in institutions provided with personnel and facilities, which take into account the minors’ needs (Return Regulations, Regulation 10).

The 2015 reforms to the Reception of Asylum Seekers Regulations provided new protections for asylum seeking children and other vulnerable applicants. Regulation 14(3) now states that whenever the vulnerability of an applicant is ascertained, no detention order shall be issued. If a detention order has already been issued it shall be revoked with immediate effect. The new regulation 14(1) also states that applicants identified as minors, or who claim to be minors, shall not be detained except as a measure of last resort or if the claim is manifestly unfounded. Further, it is provided that in the application of the regulations, the best interest of the child shall constitute primary consideration. Unaccompanied minors aged sixteen or over may however, be placed in accommodation centres for adult asylum seekers.

According to the new migration strategy in the new Initial Reception facility the Agency for the Welfare of Asylum Seekers (AWAS) shall conduct vulnerability assessments including age identification procedures when required. Age identification procedures shall be based on psycho-social assessments, medical age assessment tests shall be undertaken only as a measure of last resort. In cases where a person is identified as being a minor, or another vulnerability is detected, the result is communicated to Police authorities as to prevent or immediately withdraw detention orders.

In its report the WGAD welcomes and highlights the positive steps taken by the Maltese government in regards of migrant children.[44] However, Aditus and JRS observed that changes in legislation notwithstanding, the current praxis is to immediately detain migrants whom irregularly arrive to Malta by plane, without taking them to the Initial Reception Center. This practice increases the possibility of vulnerabilities going unidentified.[45]Once in detention, when a person is referred for a vulnerability assessment he/she will continue to be detained pending the outcome of the assessment.[46]

As reported by NGOs, upon arrival all minors, including unaccompanied whose age is in question are detained pending an age assessment procedure, which may take several months.[47] France Terre d’Asile reported cases where unaccompanied minors claimed being adults because the age determination procedure could take even longer than the asylum procedure, which is suspended during the procedure.[48] According to Human Rights Watch (HRW), Malta applies a very low threshold for disputing the age of a child, which has led to 12-year-olds being forced to undergo age determination procedures. During their detention minors are held with unrelated adults, without any accommodation specific for their age or access to school.[49] Once their age is confirmed, unaccompanied minors are released from detention and offered accommodation in specialized centres. However, those who are aged sixteen years or more may be placed in accommodation centres for adult asylum seekers that do not offer adequate support for persons in their age.[50]

Following examination of Malta’s periodic report in 2013, the CRC made several recommendation to the State’s authorities, including to expeditiously and completely cease the detention of children in irregular migration situations; to accommodate minors in non-custodial, community-based contexts while their immigration status is being determined; to improve and expedite age assessment practices and ensure that age assessments are undertaken only in cases of serious doubt; to ensure that children in immigration detention have access to adequate guardianship and legal representation; and to provide children in detention with adequate opportunities and facilities for education, leisure and recreational activities in an open context.[51]

Recently the European Court of Human Rights unanimously held that Malta breached article 3, prohibiting degrading treatment, and 5, prohibiting arbitrary and unlawful detention, of the ECHR in the case of Abdullahi Elmi and Ameys Abubakar Vs Malta. The case is of two Somali, minor asylum seekers whom in 2012 had been detained in Malta for approximately 8 months notwithstanding the fact that they had been orally informed that tests had confirmed their status of minors.[52]

Designated detention estate. Maltese laws and policies establish a set of facilities in which people can be detained for immigration reasons. Approved places of immigration detention are listed in the 1995 Places of Detention Designation Order. In addition to the three specialized detention sites (two of which were closed as this writing), the list includes a number of other police facilities, none of which appeared to be in operation as of 2016 (for more on detention sites, see the section “Detention Infrastructure” below).

New provisions regarding detention conditions were introduced in the 2015 Reception of Asylum Seekers Regulations (6A). These establish that whenever asylum seekers are detained they shall be detained in specialised facilities and kept separate from sentenced persons and, as far as possible, separate from third-country nationals whom have not applied for international protection.

Alternatives to detention. Regulation 6(8) of the Reception for Asylum Seekers Regulations introduced non-custodial measures, which can be imposed on asylum seekers. These measures include reporting and the obligation to reside at an assigned place. Such measures shall have a maximum duration of nine months. When an applicant is not required to reside in an assigned place he is required to notify the Principle Immigration Officer of any changes of address within 24 hours, to deposit or surrender documents, or to provide a one-time guarantee or surety. These measures do not appear to be “alternatives to detention” because the Principle Immigration Offices may order them even if detention is not foreseen in the case.

The regulations stipulate that non-custodial measures are applied when no detention decision is issued in respect of the person concerned but where there is nevertheless a risk of absconding. Annex C of the regulations affirms that when a recommendation is made to an immigration officer not to detain an asylum applicant given that the grounds for detention do not exist or the risk of absconding is not deemed to be sufficiently high, the officer making the recommendation shall indicate whether alternatives to detention should be applied.

According to UNHCR, these regulations lack sufficient clarity to be consider alternatives to detention, particularly due to the fact that the measures are to be applied when no detention decision has been taken in the individual case. In short, the conditions outlined in the new policy document appear to be alternatives to liberty rather than alternatives to detention.[53] UNHCR argues that the policy is based on an incorrect interpretation of the right to liberty and security if person. It also fails to transpose Article 8(2) of the EU Reception Conditions.

Immigration detainees may request bail within the context of appeal proceedings before the Immigration Appeals Board (Immigration Act, article 25(a)(6)).[54] Civil society organizations have reported that the board’s decision is usually not based on the necessity or even the legality of detention but rather on whether the person concerned has accommodation and means to sustain himself, and can provide sufficient financial guarantees to comply with the conditions of bail.[55]

The failure to apply non-custodial measures with respect to an immigration detainee in the Massoud case was one of the reasons that led the European Court of Human Right to conclude that Malta violated the applicant’s right to liberty. The court found it “hard to conceive that in a small island like Malta, where escape by sea without endangering one's life is unlikely and fleeing by air is subject to strict control, the authorities could not have had at their disposal measures other than the applicant's protracted detention to secure an eventual removal in the absence of any immediate prospect of his expulsion.”[56]

Criminalization. In December 2002 Malta decriminalized immigration-status-related violations.[57] However, if a non-citizen applying for a visa or a residence permit fails to declare his previous removal from Malta, he can charged with an offence and be subject to a fine of more than 1,000 Euros and/or imprisonment for up to six months (Immigration Act, article 24).

Access to detention information. Getting up to date statistics on detention in Malta can be challenging. During 2013-2015, Access Info Europe and the Global Detention Project undertook a joint initiative aimed at assessing the degree of openness with respect to information about detention in 33 countries, including Malta. The groups repeatedly sent two brief questionnaires asking for data on where people were detained and how many had been detained in recent years, and requesting details about asylum seekers and minors in detention. Malta refused to respond to these questions. Instead, an official in the Ministry for Home Affairs and National Security stated that only “eligible persons” could make freedom of information requests. The official pointed to legislation stipulating that an eligible person is someone “who is resident in Malta and who has been so resident in Malta for a period of at least five years” and demanded ID documents of the people making the request (as did the Czech Republic).[58] It their final report on the project, Access Info Europe and the GDP urged the Czech Republic and Malta to “reform their laws and practices so that freedom of information requests are never refused and/or delayed over questions relating to the identity of the requester.”[59]

Access to detention centres. Sources in Malta report that access to detention centres is granted to international organisations and NGOs on a weekly basis.[60] According to the 2015 policy document “Strategy for the Reception of Asylum Seekers” UNHCR and other relevant international organisations and NGOs shall have access to asylum seekers in detention centres. Access to people slated for deportation is subject to the authorisation of an immigration officer. Detainees may also receive visits from family and friends up to once a week subject to approval of an immigration officer.

DETENTION INFRASTRUCTURE

According to article 34(1) of the immigration act people may be detained for immigration-related reasons in prisons or authorised detention facilities. In practice migrants and asylum seekers do not appear to be detained in prisons for reasons solely related to their immigration status.[61]

As of mid-2017, Malta operated two specialized facilities to detain people for immigration-related reasons, B-Block at Safi Barraks and an “Initial Reception Centre” in Marsa, which opened in 2015. Two other facilities have closed in recent years: Warehouse One at Safi Barracks closed in mid-2014 for refurbishment works and had yet to re-open as of mid-2017 and Lyster Barracks in Hal Far closed in mid-2015 following sharp decreases in the number of boat arrivals.[62] There is a second “Initial Reception Centre,” located in Hal Far, but it was not in use of this writing because of the low number of arrivals.[63]

A 1995 “Places of Detention Designation Order” lists a number of additional facilities that no longer appear to be used for immigration detention purposes: the Special Assignment Group Complex (Ta’Kandja); Victoria Police Station (Gozo); a building housing the courts of Justice at Valletta; Police Headquarters at Floriana; Police Custody at the Malta International Airport; Police Custody at the Seaport in Valletta; the Police Complex at Fort Mosta (Mosta); and the Hal-Far Immigration Reception Centre. Although, there is a holding facility currently in use in Malta’s international airport, sources in Malta indicate that people are held in this facility for very brief periods, hence the Global Detention Project does not classify it as an “in use” detention centre.

Malta’s immigration detention capacity has decreased significantly over the last decade: In 2008 it was an estimated 1,800; in 2011, 740; in 2016, 388 (including both Safi Barracks and the Initial Reception Centre). The only remaining long-term detention facility, B-Block at Safi Barraks, has a limited capacity of 200 people.[64] At the time of the WGAD’s visit, only six people were in detention. When the CPT visited the centre in September of 2015 the number of detainees remained six, although three where momentarily at the hospital.

Malta established the “Initial Reception Centre” (IRC) at Marsa in 2015. The facility is managed by the Agency for the Welfare of Asylum Seekers (AWAS), part of the Ministry of Home Affairs and National Security. Immigration officers at the facility are supposed to assess on a case-by-case basis whether there are grounds for longer term detention for irregularly arriving non-citizens.[65] Currently, only asylum seekers who are relocated to Malta from Italy and Greece are detained here, and not those arriving “regularly” by plane. Detention periods can vary between a couple of days and a couple of weeks,[66] even though official policy stipulates that people should be held there for a maximum of seven days. Although Malta does not classify the IRC as a detention centre, the GDP categorizes it as a medium-term dedicated immigration detention centre because it operates as a secure facility from which people cannot exit at will.

People are detained at the B-Block Safi Barracks facility for two main reasons: if they have been refused entry at the border or during pre-removal process for those in an “irregular” situation apprehended inside the territory.[67] Safi Barracks (as well as the inoperative facility at Lyster Barraks) is under the control and management of Detention Services (DS), a government body under the Ministry of Home Affairs and National Security. Notably, the DS is neither established nor regulated by a specific law.[68] The ministry informed the Global Detention Project in 2009 that the “Detention Service is made up of personnel seconded from the Police Force and from the Armed Forces of Malta, as well as civilians.” Its role is to maintain security at the secure centres and to provide adequate accommodation; the necessary toilet and shower facilities; food; clothing; a hygienic and safe environment; access to medical care; access to the Commissioner for Refugees for asylum processing; access to non-governmental organisations; and access to means of contacting home or country representatives.[69]

Irregular migrants who are found to be suffering from mental illness are sent to the Mount Carmel Psychiatric Hospital.[70] Malta also operates a number of non-secure reception centres that provide accommodation for vulnerable migrants and those granted refugee or humanitarian protection. According to AIDA, there are eight open—or “non-secure”—reception centres in Malta: two of run by NGOs and the remaining six by AWAS. The conditions vary from centre to centre but are generally considered “extremely challenging” due to poor hygiene, overcrowding, remoteness, poor material structure. According to UNHCR, in 2016 the total population residing in Malta’s open centres is of 673 persons.[71]

Detention conditions. The Returns Regulations only refer to conditions applicable to vulnerable persons (9(2))—who are to be provided with emergency healthcare and essential medical treatment—and minors (10), who are to be provided separate accommodation and have access to leisure activities.[72]

In December 2015 new provisions regarding detention conditions were introduced in the Reception of Asylum Seekers Regulations (6A). Among the reforms, the regulations establish that whenever asylum seekers are to be detained they must be detained in specialised facilities and kept separate from sentenced persons and, as far as possible, separate from third-country nationals who have not applied for international protection. Further, applicants in detention are to have access to open-air spaces; and be given the possibility to communicate and receive visits from UNHCR representatives as well as from legal advisors, counsellors, NGO representatives and family members.[73]

International and non-governmental organizations have repeatedly criticized conditions at detention centres in Malta. In 2016, months after the government issued its new policies on immigration and asylum procedures, NGOs reported that the policies had not led to improvements in detention conditions.[74]

In December 2014 the Special Rapporteur on the Human Rights of Migrants visited the Safi detention centre and found that it was lacking personal space and privacy for migrants, potable water, adequate food and adequate access to health care. He reported that asylum seekers where at times placed in the same institutions as prisoners and drug users, were sometimes handcuffed to their beds or locked in a room, were rarely allowed to shower, and lacked regular medical visits. [75]

In 2013, the CRC noted that it had received reports of unrelated female, male, and children asylum seekers being accommodated in the same premises, with joint usage of common showers and toilets. The committee recommended that Malta ensure the provision of adequate gender-separate accommodation, toilets, and shower facilities in migration detention centres.[76]

In 2013, in the case of Aden Ahmed, the European Court ruled that Malta’s conditions of immigration detention amounted to ill-treatment. The court was concerned about the conditions in which the applicant was detained at Lyster Barracks, notably the exposure to cold conditions, the lack of female staff, the complete lack of access to open air and exercise for periods of up to three months, inadequate diet, and the particular vulnerability of Ms Ahmed due to her fragile health and personal emotional circumstances.[77]

As the WGAD observed, after their visit to Malta in June 2015, due to the drastic reduction in the number of detainees the conditions in Safi Barraks had improved. Nevertheless educational and social programs are still lacking and strong concerns were expressed over the fact that military barracks are used as a detention facility for migrants.[78] The CPT notes that the regime in B-Block in Safi Barracks remains restrictive and the conditions carceral.[79]

At the time of the CPT visit (September 2015) there where only three persons detained in B-Block in Safi Barracks (other three detainees where momentarily recovered in Mater Dei Hospital). The three detainees where accommodated in one room with four sets of bunk beds, located on the ground floor.[80] The centre has a common room furnished with tables, benches and a TV, a small recreation yard and a kitchen.[81]

The committee remarked that the material conditions where in general satisfactory. Nevertheless it was pointed out that 30m2 rooms are currently furnished to accommodate 22 persons, whilst given the size of the rooms they should accommodate a maximum of 7 people in order to guarantee a minimum living space of 4m2 per detainee. Further, the CPT once again recommended that a systematic medical screening should be put in place for newly arrived detainees as well as a screening mechanism to identify potential victims of torture. Recommendation where also made concerning the detainees contact with the outside world; the CPT advises that the right of detainees to receive visits on a regular basis and in an appropriate setting should be introduced, further, access to mobile phones at set times should be granted.[82]

[1] United Nations Working Group on Arbitrary Detention (WGAD). 2016. Report of the Working Group on Arbitrary Detention follow-up mission to MALTA (23 to 25 June 2015). United Nations General Assembly.

[3]European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE). 2006. Report by the LIBE Committee delegation on its visit to the administrative detention centres in Malta: Rapporteur: Giusto Catania. European Parliament Committee on Civil Liberties, Justice and Home Affairs. PV/613713EN.doc. Brussels. 30 March 2006

[11] European Council (03/02/2017) “Malta Declaration by the members of the European Council on the external aspects of migration: addressing the Central Mediterranean route”. Available at: http://www.consilium.europa.eu/en/press/press-releases/2017/01/03-malta-declaration/

[12] European Council. 2017. “Malta Declaration by the members of the European Council on the external aspects of migration: addressing the Central Mediterranean route”. Available at: http://www.consilium.europa.eu/en/press/press-releases/2017/01/03-malta-declaration/

[14] Immigration Act. 1970. Chapter 217 of the Laws of Malta. 21st September 1970. ACT IX of 1970, as amended by Acts XLIV of 1972, XLIX of 1981, VIII of 1982, XIII of 1983, XXXIII of 1988, XXV of 1989, VIII of 1990, XXIV of 1995, IV and IX of 2000, XXIII of 2002, and VIII of 2004; Legal Notice 248 of 2004; Acts XIII and XVII of 2005; Legal Notices 274 and 411 of 2007; Acts VII and XV of 2008, and XVIII of 2009; Legal Notice 20 of 2013; and Act XXXVI of 2015.

Available at: http://www.justiceservices.gov.mt/DownloadDocument.aspx?app=lom&itemid=8722&l=

[16]Refugees Act. 2001. Chapter 420 of the Laws of Malta. 1st October, 2001. ACT XX of 2000, as amended by Act VIII of 2004; Legal Notices 40 of2005 and 426 of 2007; and Acts VII of 2008, and VI and VII of 2015. Available at: http://justiceservices.gov.mt/DownloadDocument.aspx?app=lom&itemid=8886

[21] UNHCR (2016) “UNHCR’s Observations on Malta’s Revised Legislative and Policy Framework for the Reception of Asylum-Seekers”. 25TH February 2016. Available at: http://www.refworld.org/pdfid/56e963824.pdf

[22] Ministry of Home Affairs and National Security. 2015. Strategy for the Reception of Asylum Seekers and Irregular Migrants. Available at: https://0d2d5d19eb0c0d8cc8c6-a655c0f6dcd98e765a68760c407565ae.ssl.cf3.rackcdn.com/ee87eb6093978ddf835be5759bc86d018724f3a8.pdf

[27] UN Working Group on Arbitrary Detention (WGAD). 2009 Annex. “Annex to the press release on the visit of the United Nations Working Group on Arbitrary Detention to Malta.” United Nations Press Release. 26 January 2009

[28] UNHCR (2016) “UNHCR’s Observations on Malta’s Revised Legislative and Policy Framework for the Reception of Asylum-Seekers”. 25TH February 2016. Available at: http://www.refworld.org/pdfid/56e963824.pdf

[29] United Nations Working Group on Arbitrary Detention (WGAD). 2016. Report of the Working Group on Arbitrary Detention follow-up mission to MALTA (23 to 25 June 2015). United Nations General Assembly.

Immigration Act. 1970. Chapter 217 of the Laws of Malta. 21st September 1970. ACT IX of 1970, as amended by Acts XLIV of 1972, XLIX of 1981, VIII of 1982, XIII of 1983, XXXIII of 1988, XXV of 1989, VIII of 1990, XXIV of 1995, IV and IX of 2000, XXIII of 2002, and VIII of 2004; Legal Notice 248 of 2004; Acts XIII and XVII of 2005; Legal Notices 274 and 411 of 2007; Acts VII and XV of 2008, and XVIII of 2009; Legal Notice 20 of 2013; and Act XXXVI of 2015. Article 25(A)(5).

[32] United Nations Working Group on Arbitrary Detention (WGAD). 2016. Report of the Working Group on Arbitrary Detention follow-up mission to MALTA (23 to 25 June 2015). United Nations General Assembly.

[33] UNHCR (2016) “UNHCR’s Observations on Malta’s Revised Legislative and Policy Framework for the Reception of Asylum-Seekers”. 25TH February 2016. Available at: http://www.refworld.org/pdfid/56e963824.pdf

[34] Committee on the Rights of the Child (CRC). 2013. Concluding observations on the combined second periodic reports of Malta, adopted by the Committee at its sixty-second session (14 January – 1 February 2013). CRC/C/MLT/CO/2. Committee on the Rights of the Child. 5 February 2013.http://www2.ohchr.org/english/bodies/crc/crcs62.htm (accessed 25 March 2013)

[39] United Nations Working Group on Arbitrary Detention (WGAD). 2016. Report of the Working Group on Arbitrary Detention follow-up mission to MALTA (23 to 25 June 2015). United Nations General Assembly.

[41] Committee on the Rights of the Child (CRC). 2013. Concluding observations on the combined second periodic reports of Malta, adopted by the Committee at its sixty-second session (14 January – 1 February 2013). CRC/C/MLT/CO/2. Committee on the Rights of the Child. 5 February 2013.http://www2.ohchr.org/english/bodies/crc/crcs62.htm (accessed 25 March 2013).

[42] Committee on the Elimination of Racial Discrimination (CERD). 2011. Consideration of reports submitted by States parties under article 9 of the convention; Concluding observations of the Committee on the Elimination of Racial Discrimination: Malta. CERD/C/MLT/CO/15-20. Committee on the Elimination of Racial Discrimination. August 2011. http://daccess-ods.un.org/TMP/8803405.1656723.html (accessed 25 March 2013).

[43] United Nations Working Group on Arbitrary Detention (WGAD). 2010. Report of the Working Group on Arbitrary Detention: Addendum: Mission to MALTA (19 to 23 January 2009). United Nations General Assembly. A/HRC/13/30/Add.2. 18 January 2010. http://daccess-ods.un.org/TMP/9688466.19129181.html (accessed 25 March 2013).

[44] United Nations Working Group on Arbitrary Detention (WGAD). 2016. Report of the Working Group on Arbitrary Detention follow-up mission to MALTA (23 to 25 June 2015). United Nations General Assembly.

[49] Committee on the Rights of the Child (CRC). 2013. Concluding observations on the combined second periodic reports of Malta, adopted by the Committee at its sixty-second session (14 January – 1 February 2013). CRC/C/MLT/CO/2. Committee on the Rights of the Child. 5 February 2013.http://www2.ohchr.org/english/bodies/crc/crcs62.htm (accessed 25 March 2013).

[51] Committee on the Rights of the Child (CRC). 2013. Concluding observations on the combined second periodic reports of Malta, adopted by the Committee at its sixty-second session (14 January – 1 February 2013). CRC/C/MLT/CO/2. Committee on the Rights of the Child. 5 February 2013.http://www2.ohchr.org/english/bodies/crc/crcs62.htm (accessed 25 March 2013).

MINISTRY FOR JUSTICE AND HOME AFFAIRS AND MINISTRY FOR THE FAMILY AND SOCIAL SOLIDARITY (Malta), Irregular immigrants, refugees and integration – policy documenthttp://www.enaro.eu/documents/immigration-English.pdf (accessed 25 March 2013).

[60] Aditus, Jesuit Refugee Service (JRS) and European Council for Refugees and Exiles (ECRE). 2015. “AIDA Country Profile: Malta”. November 2015. Accessible at: http://www.asylumineurope.org/reports/country/malta

[62] Aditus, Jesuit Refugee Service (JRS) and European Council for Refugees and Exiles (ECRE). 2015. “AIDA Country Profile: Malta”. November 2015. Accessible at: http://www.asylumineurope.org/reports/country/malta

[68] Aditus, Jesuit Refugee Service (JRS) and European Council for Refugees and Exiles (ECRE). 2015. “AIDA Country Profile: Malta”. November 2015. Accessible at: http://www.asylumineurope.org/reports/country/malta

[75] UN Human Rights Council, Report by the Special Rapporteur on the human rights of migrants, Francois Crepea. Mission to Malta 6-10 December 2014., 12 May 2015, A/HRC/29/36/Add.3, available at: http://www.ohchr.org/EN/Issues/Migration/SRMigrants/Pages/CountryVisits.aspx

[76] Committee on the Rights of the Child (CRC). 2013. Concluding observations on the combined second periodic reports of Malta, adopted by the Committee at its sixty-second session (14 January – 1 February 2013). CRC/C/MLT/CO/2. Committee on the Rights of the Child. 5 February 2013.http://www2.ohchr.org/english/bodies/crc/crcs62.htm (accessed 25 March 2013).

[78] United Nations Working Group on Arbitrary Detention (WGAD). 2016. Report of the Working Group on Arbitrary Detention follow-up mission to MALTA (23 to 25 June 2015). United Nations General Assembly.

[79] Council of Europe: Committee for the Prevention of Torture, Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 3 to 10 September 2015 , 25 October 2016, CPT/Inf (2016) 25, available at: http://www.refworld.org/docid/581219334.html

[80] Council of Europe: Committee for the Prevention of Torture, Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 3 to 10 September 2015 , 25 October 2016, CPT/Inf (2016) 25, available at: http://www.refworld.org/docid/581219334.html

[81] International Commission of Jurists (ICJ). 2012. Not Here to Stay: Report of the International Commission of Jurists on its Visit to Malta on 26-30 September 2011. ICJ. May 2012. http://www.refworld.org/topic,50ffbce582,50ffbce5b5,4fe4096a2,0,ICJURISTS,,.html (accessed 25 March 2013).

[82] Council of Europe: Committee for the Prevention of Torture, Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 3 to 10 September 2015 , 25 October 2016, CPT/Inf (2016) 25, available at: http://www.refworld.org/docid/581219334.html

Migration Policy Institute tabulation of data from the United Nations, Department of Economic and Social Affairs (2015), Trends in International Migrant Stock: Migrants by Destination and Origin (United Nations database, POP/DB/MIG/Stock/Rev.2015).

United Nations Working Group on Arbitrary Detention (WGAD). 2016. Report of the Working Group on Arbitrary Detention follow-up mission to MALTA (23 to 25 June 2015). United Nations General Assembly. A/HRC/33/50/Add.1

CRPD, Optional Protocol to o the Convention on the Rights of Persons with Disabilities

2012

UN Treaty Collection

ICERD, declaration under article 14 of the Convention

1998

UN Treaty Collection

ICCPR, First Optional Protocol to the International Covenant on Civil and Political Rights, 1966

1990

UN Treaty Collection

CAT, declaration under article 22 of the Convention

1990

UN Treaty Collection

Ratio of complaints procedures accepted

Number

Observation Date

4 / 7

4 / 7

Relevant recommendations issued by treaty bodies Show sources

Name

Recommendation Excerpt

Recommendation Year

Human Rights Committee

§16 [...] (a) Guarantee that administrative detention for immigration purposes is justified as reasonable, necessary and proportionate in light of the specific circumstances and used as a measure of last resort for the shortest appropriate period;[...] (e) Establish in its legislation a specific time limit and alternatives for detention; (f) Ensure that administrative detention for immigration purposes is subjected to periodic evaluation and judicial review by an independent judicial body, in accordance with the requirements of article 9 of the Covenant.

§18 [...] The State party should strengthen its efforts to improve the living conditions in detention centres on a sustainable basis, including with regard to adequate health care- services and sanitary conditions, with a view to achieving full compliance with the requirements of article 10.

§ 58: [...] the Committee urges the State party to: (a) Refrain from criminalizing children in irregular migration situations for their or their parent’s migration status and expeditiously and completely cease the detention of children in irregular migration situations; (b) Adopt legislation, policies and practices that subject all custodial accommodation relating to migration status to clear time limits and periodic reviews; and allow children to remain with family members and/or guardians if they are present in the transit and/or destination countries, and be accommodated in non-custodial, community-based contexts while their immigration status is being determined; (c) Improve and expedite age assessment practices by implementing multidisciplinary and transparent procedures and ensure that age assessments are undertaken only in cases of serious doubt; (d) Ensure that children are provided with accessible and adequate support and mechanisms for appealing age determination decisions in a timely manner; (e) Provide adequate human, technical and financial resources for ensuring that children in migration-related custody have access to adequate guardianship and legal representation; (f) Ensure that, while in migration-related custodial arrangements, children are provided with adequate opportunities and facilities for education, leisure and recreational activities in an open context; (g) Ensure the provision of adequate appropriate gender-separate accommodation, toilet and shower facilities in migration detention centres; (h) Respect the right to peaceful assemblies and protests by persons and children in migration detention centres and ensure that any use of force is subject to strict necessity standards and the principle of proportionality; and, (i) Ensure that adequate human, technical and financial resources are allocated to address the health needs of children and persons in migration detention centres.

2013

Concluding observations on the second periodic report of Malta, adopted by the Committee at its sixty-second session (14 January–1 February 2013). CRC/C/MLT/CO/2. 18 June 2013.

Committee on the Elimination of Racial Discrimination

§ 13: The Committee recommends that the State party strengthen its efforts to effectively guarantee the legal safeguards for all immigrants detained, in particular to inform them about their rights and available legal assistance, and to provide assistance to those seeking asylum. The Committee also recommends that the State party continue its efforts aimed at improving the detention and living conditions of immigrants and thereby comply with international standards, in particular by modernizing detention centres and placing families with children in alternative open accommodation centres. [...]; § 14: The Committee recommends that the State party take appropriate measures to improve detention conditions and refrain from resorting to excessive use of force to counter riots by immigrants in detention centres, and also to avoid such riots. [...]

2011

Consideration of reports submitted by States parties under article 9 of the Convention: Concluding observations of the Committee on the Elimination of Racial Discrimination: Malta. CERD/C/MLT/CO/15-20. 14 September 2011.

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)

36. The CPT once again calls upon the Maltese authorities to ensure that detained persons are addressed by their name and not by a number. 37. The CPT recommends that steps be taken to improve the living conditions at B Block of Safi Detention Center, notably as regards: - the amount of living space afforded to each detained person within the dormitories; - the removal of surplus beds and the provision of new mattresses; - the equipping of the courtyard with a means to rest, a shelter and sports equipment; - the provisions of activities for those persons detained longer than a few days. Consideration should also be given to serving the evening meal later in the day. 39. The CPT recommends that the Maltese authorities consider developing the role and scope of duties of detention officers, as well as their skills and training, in light of the above remarks. 42. The CPT recommends that every detained person be systematically provided with written information, in a language they understand, on the house rules immediately upon their arrival in the facility. 43. The CPT recommends that the Maltese authorities introduce the right for detained persons to receive visits on a regular basis in an appropriate setting. Further, they should be allowed to have access to their mobile phones at set times.

2016

2016

Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 3 to 10 September 2015. CPT/Inf (2016)26. October 2016.

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)

§ 47: the Maltese authorities to take steps as a matter of priority to ensure the presence of at least one female officer around the clock at Lyster Detention Centre; § 48: the Maltese authorities to remind all members of staff working in detention centres for foreigners that disrespectful behaviour and racist remarks vis-à-vis detainees are not acceptable and will be punished accordingly; § 49: the Maltese authorities to put an end to the practice of staff calling detainees by their immigration file/tag numbers; § 52: a comprehensive inquiry to be carried out by an independent body into the manner in which foreign nationals were treated by police officers and soldiers in the context of the incident of 16 August 2011 at Safi Detention Centre; § 55: the Maltese authorities to take the necessary measures to ensure that all immigration detainees currently being held in the two Warehouses at Safi Barracks are transferred as soon as possible to Ta’ Kandja Detention Centre and that both Warehouses are in future only used for short-term detention in emergency situations; § 56: immediate steps to be taken to ensure that all immigration detainees at Lyster Detention Centre are offered at least one hour of outdoor exercise per day; § 57: the Maltese authorities to introduce a regime providing purposeful activities to foreign nationals held at Safi and Ta’ Kandja Detention Centres; § 59: the Maltese authorities to carry out a thorough review of the current arrangements for the provision of health care in the detention centres for foreigners. More specifically, steps should be taken to ensure that: the working hours of doctors are increased and that for each detention centre one doctor is designated to co-ordinate the health-care services withing the centre; the nursing cover is significantly increased in all centres. This should make it possible for a nurse to be present every day (including at weekends) and for the provision and distribution of prescribed medicines to be handled by nursing staff; someone competent to provide first aid is always present on the premises of all detention centres (including at night); all newly-arrived detainees benefit from comprehensive medical screening by a doctor or a fully-qualified nurse reporting to a doctor; whenever injuries are recorded by a doctor which are consistent with allegations of ill-treatment made by a foreign national (or which, even in the absence of allegations, are clearly indicative of ill-treatment), the record is systematically brought to the attention of the relevant prosecutor, regardless of the wishes of the person concerned; all detention centres are regularly attended by a psychiatrist and a psychologist; all medicines prescribed are promptly dispensed thereafter; the confidentiality of medical examinations and data is fully respected; § 61: the Maltese authorities to take steps to ensure that foreign nationals are allowed to receive visits on a regular basis and that specific facilities are set up for that purpose. Relevant information on the visiting arrangements should also be included in the information brochure “Your Entitlements, Responsibilities and Obligations while in Detention” which is given to detainees; § 64: the Maltese authorities to take steps to ensure that immigration detainees subject to the disciplinary sanction of “removal from association” have the right to be heard on the subject of the offences which they are suspected of having committed, to present evidence to defend themselves and to appeal to a higher authority against any sanctions imposed; Mount Carmel Hospital Living conditions: § 72: steps be taken in the Forensic Ward to ensure that: all patients are provided with a bed as well as with lockable space to store their personal belongings; toilets in double- and multi-occupancy rooms are adequately partitioned; the general level of hygiene is improved; § 73: the Maltese authorities to take immediate steps to ensure that all patients held in the Irregular Migrants’ Ward whose state of health so permits are offered at least one hour of outdoor exercise per day; steps to be taken to improve the artificial lighting in the cells of the Irregular Migrants’ Ward; § 73: steps to be taken to ensure that all foreign nationals are provided with more congenial and personalised surroundings (including a table and a chair) and are offered recreational activities.

2013

2013

Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 26 to 30 September 2011. CPT/Inf (2013)12. July 2013.

European Commission against Racism and Intolerance (ECRI)

§ 81: ECRI recommends that the Maltese authorities amend their legislation in order to ensure that all persons held in the detention centres are provided with a speedy and effective judicial remedy to challenge the lawfulness of their detention; § 86: ECRI strongly recommends that the Maltese authorities provide non-custodial alternatives to detention and refrain from resorting to the detention of migrants and asylum seekers unless it is strictly necessary in the particular circumstances of an individual case; § 87: ECRI also recommends that third-country nationals who are detained with a view to deportation should be freed when it is clear that it is no longer possible to effect the deportation; § 88: It further recommends that the Maltese authorities provide under Maltese law a limit to the duration of the detention of migrants in an irregular situation in all cases, in line with Directive 2008/115/EC on common standards and procedures in member States for returning illegally staying third-country nationals; § 95: ECRI recommends that the Maltese authorities conclude as soon as possible all the inquiries and the criminal investigations opened further to the deaths of a Nigerian and a Malian national in 2011 and 2012, while in the custody of detention personnel and give the public full access to the results; § 96: ECRI strongly recommends the Maltese authorities to provide detention personnel with training on human rights, including provisions against racial discrimination. ECRI further recommends that the authorities raise the detention personnel’s awareness of the fact that abuse of power and the use of excessive force will be severely punished; § 101: ECRI strongly recommends that the Maltese authorities ensure that all unaccompanied minors and persons suffering from serious physical or mental conditions are promptly identified and transferred to an appropriate, non custodial setting, suitable for their vulnerable condition.

Report of the Working Group on Arbitrary Detention - Addendum - Mission to Malta , 19 to 23 January 2009, A/HRC/13/30/Add.2, 18 January 2010

Relevant recommendations by UN Special Procedures Show sources

Name

Recommendation Excerpt

Recommendation Year

Observation Date

Working Group on arbitrary detention

89. The Working Group welcomes the cooperation received from the Government of Malta during its follow-up visit and wishes to continue this cooperation. The Working Group would like to make the following recommendations:
1. In relation to migrant, asylum seekers and refugees
(a) To end the regime of mandatory and automatic detention regime for asylum seekers, refugees and migrants in an irregular situation and to replace it by a reception system;
(b) To end military presence in the management of the detention centres;
(c) To ensure that immigrants in an irregular situation, refugees and asylum-seekers are informed about their rights as well as the regulations and procedures since their arrival to Malta;
(d) To further reduce the duration of administrative detention of immigrants in an irregular situation. The Working Group recommends that detention should be applied when results necessary, reasonable in all the circumstances, proportionate to a legitimate purpose; non discriminatory and subjected to judicial review. The criteria of necessity and responsibility should always be respected. In addition, the Working Group recommends that less restrictive measures should be applied, such as bail; home curfew; deposit of documents; reporting conditions; community release or supervision designated residence;
(e) To extend free legal aid to immigrants in an irregular situation, refugees and asylum-seekers before the appeal stage of the review process. It should be not limited to recourse before the Immigration Appeals Board but be extended to appeals before the Civil, Constitutional and European Courts, as well as international human rights bodies;
(f) To design long-term planning for people living in open centres. The Government should explore alternative placement options. The Working Group suggests that the Government of Malta work together with civil organizations and religious bodies which have ample experience in providing community-based placement to create more opportunities for migrants, asylum seekers and refugees to reside in the community;
(g) To prioritise the cooperation of civil society organizations, particularly religious institutions with considerable expertise and experience in these areas. These organisations have a substantial contribution to make regarding the legislative drafts that the Government is preparing in order to design a new system of reception of immigrants, refugees and asylum-seekers not based on detention.

2016

2016

United Nations Working Group on Arbitrary Detention (WGAD). 2016. Report of the Working Group on Arbitrary Detention follow-up mission to MALTA (23 to 25 June 2015). United Nations General Assembly. A/HRC/33/50/Add.1

Working Group on arbitrary detention

§ 79: (e) Change its laws and policies related to administrative detention of migrants in an irregular situation and asylum-seekers, so that detention is decided upon by a court of law, on a case-by-case basis and pursuant to clearly and exhaustively defined criteria in legislation, under which detention may be resorted to, rather than being the automatic legal consequence of a decision to refuse admission of entry or a removal order; (f) Rule out immigration detention of vulnerable groups of migrants, including unaccompanied minors, families with minor children, pregnant women, breastfeeding mothers, elderly persons, persons with disabilities, people with serious and/or chronic physical or mental health problems; (g) Provide in all cases for automatic periodic review by a court of law on the necessity and legality of detention; (h) Provide for an effective remedy for detainees to challenge the necessity and legality of detention at any time of the detention period and ex
post facto and define the circumstances; (i) Where there remains a regime of mandatory administrative detention for migrants in an irregular situation, legally define its maximum period rather than basing it on Government regulations or policy; (j) Provide for a system of legal aid for immigration detainees; (k) Appeal to the international community to assist the Government in bringing its immigration detention regime into conformity with applicable international human rights law and standards. The Working Group observes that Malta is carrying a disproportionate burden and does not have the necessary financial and other resources at its disposal. This does not detract Malta from its international human rights obligations undertaken voluntarily as a sovereign nation;

2010

2010

Report of the Working Group on Arbitrary Detention: Addendum: Mission to MALTA (19 to 23 January 2009). A/HRC/13/30/Add.2. 18 January 2010.

Relevant recommendations of the UN Universal Periodic Review Show sources

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

International or Regional Bodies (IRBs)

2014

Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 26 to 30 September 2011. CPT/Inf (2013)12. July 2013.

Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 26 to 30 September 2011. CPT/Inf (2013)12. July 2013.

Media

Additional Resources

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September 2017

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August 2017

Malta is the most densely populated country in the European Union and has one of the highest concentrations of refugees in the world. Although at one time it served as a key destination for migrants and asylum seekers crossing the Mediterranean Sea en route to Europe, increased efforts to interdict boats have led to a […]

The Detention of Asylum Seekers in the Mediterranean Region

April 2015

With the recent tragic surge in the number of deaths at sea of asylum seekers and other migrants attempting to reach Europe, enormous public attention is being focused on the treatment of these people across the Mediterranean. An important migration policy employed throughout the region is detention, including widespread deprivation of liberty of asylum seekers […]